More Articles

The Dispatch E-Edition

All current subscribers have full access to Digital D, which includes the E-Edition and
unlimited premium content on Dispatch.com, BuckeyeXtra.com, BlueJacketsXtra.com and
DispatchPolitics.com.
Subscribe
today!

Wendy's latest marketing campaign, which uses "You can't fake fresh" in some of its ads, has
prompted a Florida-based restaurant chain to sue, saying the slogan is its trademarked tagline.

Phelan Holdings Inc., which owns Pincher's Crab Shack in Naples, Fla., says in court papers that
Wendy's use of the slogan infringes on its trademark and causes consumers to confuse the two
restaurant chains.

The company, with seven seafood restaurants in southwestern Florida, said the slogan is worth
more than $2 million and is asking a judge to stop the Dublin-based hamburger chain from using it
to promote its more than 6,500 restaurants nationwide and internationally.

The lawsuit, filed last week in federal court in Fort Myers, Fla., also accuses Wendy's of
violating Florida's Deceptive and Unfair Trade Practices Act and seeks damages and any profits or
gains Wendy's might earn as a result of using the tagline, it said.

Wendy's spokesman Denny Lynch did not comment on the suit other than to say that Wendy's theme
is "You know when it's real," he wrote in an email.

That tagline is the theme of a new ad campaign by the No. 3 hamburger chain, but images included
as evidence in the Pincher's lawsuit show Wendy's employees holding signs that read, "You can't
fake fresh."

Wendy's began using the "real" theme in its commercials and on its website last year. Pincher's
said it trademarked the slogan "You can't fake fresh" in 2004.

The company is also seeking to prevent Wendy's from using the tagline "You can't fake real,"
noting its similarity to the trademarked slogan, the suit said.